Could Congress jail Attorney General Eric Holder for contempt?

Congress has jailed those deemed in contempt before but never a sitting Cabinet official – and not recently. Moreover, the few times Congress has locked down people within the Capitol, it has not turned out well for Congress.

(Read caption)
Attorney General Eric Holder testifies on Capitol Hill in Washington in this June 12 file photo. Mr. Holder's refusal to release documents requested by a House panel led to two censure votes against him on Thursday.

The leaders of the House Government Oversight Committee traded barbed comments on the House floor. Republicans passionately argued that their quest was about providing closure to the family of US border agent Brian Terry, whose murder was linked to weapons from a “gunwalking” operation in Arizona known as Fast and Furious. It was that operation that prompted Congress’s investigation into the Justice Department and Mr. Holder.

Democrats, lead by civil rights hero Rep. John Lewis (D) of Georgia arm-in-arm with House minority leader Nancy Pelosi (D) of California, walked off the House floor during the contempt votes. They marched en masse to the lawn outside the Capitol to protest what they called a Republican “kangaroo court” aimed not at investigating why guns were allowed to pass into the hands of Mexican drug cartels but, instead, at claiming Holder’s political scalp.

But one dramatic turn that didn’t come to pass? The House sending the sergeant-at-arms to arrest the attorney general and imprison him in the Capitol until it gets its way. That’s a move well within congressional rights with a contempt resolution, albeit one that hasn’t been tried in about a century.

Had the House tried to do so, it may have risked a showdown with executive branch police who protect Holder, according to Josh Chafetz, a law professor at Cornell University.

And it’s not as if Congress has been terribly effective at jailing those it has held in contempt, according to Senate Historian Donald Ritchie’s book, “Press Gallery,” and research by Mr. Chafetz, who is writing a book on congressional power.

In fact, it appears Holder might have had more fun being “jailed” in Congress than facing House Government Oversight Committee Chairman Rep. Darrell Issa (R) of California.

The penultimate congressional jailing came in in 1848, when the Senate imprisoned New York Herald reporter John Nugent for publishing the then-secret Treaty of Guadalupe-Hidalgo, which ended the Mexican War. But the Herald kept publishing letters from Mr. Nugent during his weeks of incarceration, with the dateline “Custody of the Sergeant-at-Arms” and doubled Nugent’s salary while he was locked down in Congress.

Weary of leaving Nugent to berate them from the relative comfort of his new digs in a Capitol Hill committee room – and embarrassed by his paper’s publication of a long list of senators who had leaked secret documents to the media – the Senate released Nugent with the face-saving claim of looking out for his health.

In 1871, the Senate put two reporters from The New York Tribune into the congressional stockade, after they paid $500 to purchase the secret Treaty of Washington, settling America’s Civil War claims with Great Britain.

“We know the spirit that prevails through the profession to which these young gentlemen belong,” said Sen. Oliver Morton, according to Mr. Ritchie’s book. “Their honor, their reputation, their pride, their word, have all been pledged that they will not make this disclosure, and they will go up to this disconsolate, gloomy dungeon and stay there before they will do it.”

Unfortunately, there was no “gloomy dungeon,” as Mr. Ritchie points out – the reporters were housed in the Pacific Railroad Committee Room, were allowed to eat in the Senate dining room, and were frequently visited by their family, friends, and supporters. Both reporters were eventually released without offering a confession.

The House also moved against two members of the executive branch but didn’t jail either one. In 1879, the House arrested but did not imprison the US minister to China, George Seward, over claims that he had misappropriated funds while he was consul general to Shanghai. In 1915, the House arrested a district attorney in New York but likewise didn’t imprison him on Capitol Hill.

Last week, Democratic leader Pelosi told reporters that, as speaker of the House in 2007, she could have jailed White House adviser Karl Rove, but declined. "There’s a prison here in the Capitol," she said. "If we had spotted him in the Capitol, we could have arrested him.”

The Bush White House refused to let Mr. Rove testify before a House panel investigating the firing of several US attorneys, citing executive privilege.

Had then-majority House Democrats moved on a contempt vote, Rove would probably have commanded a well-appointed committee room, at least.